Epistemology and Methodology of Comparative Law (European Academy of Legal Theory Series)

Whereas many modern works on comparative law focus on various aspects of legal doctrine, the aim of this book is of a more theoretical kind - to reflect on comparative law as a scholarly discipline, in particular on its epistemology and methodology. Thus, among its contents, the reader will find: a lively discussion of the kind of "knowledge" that is, or could be, derived from comparative law; an analysis of "legal families" which asks whether we need to distinguish different "legal families" according to areas of law; essays which ask what is the appropriate level for research to be conducted - the technical "surface level", a "deep level" of ideology and legal practice, or an "intermediate level" of other elements of legal culture, such as the socio-economic and historical background of law. One part of the book is devoted to questioning the identification and demarcation of a "legal system" (and the clash between "legal monism" and "legal pluralism") and the definition of the European legal orders, sub-State legal orders, and what is left of traditional sovereign State legal systems; while a final part explores the desirability and possibility of developing a basic common legal language, with common legal principles and legal concepts and/or a legal meta-language, which would be developed and used within emerging European legal doctrine. All the papers in this collection share the common goal of seeking answers to fundamental, scientific problems of comparative research that are too often neglected in comparative scholarship. Legal Culture V. Legal Tradition / Alan Watson -- Legal Cultures And Legal Traditions / H. Patrick Glenn -- Legal Epistemology And Transformation Of Legal Cultures / Marek Zirk-sadowski -- Epistemology And Comparative Law : Contributions From The Sciences And Social Sciences / Geoffrey Samuel -- How To Make Comparable Things : Legal Engineering At The Service Of Comparative Law / Juha Karhu (previously Juha Pöyhönen) -- Methodology And European Law -- Can Methodology Change So As To Cope With The Multiplicity Of The Law? / Karl-heinz Ladeur -- Comparative Law Of Obligations : Methodology And Epistemology / Christian Von Bar -- Codifying European Private Law / Walter Van Gerven -- Deep Level Comparative Law / Mark Van Hoecke -- Nice Dreams And Realities Of European Private Law / Nikolas Roos -- Europeanisation Of National Legal Systems : Some Consequences For Legal Thinking In Civil Law Countries / Jan M. Smits -- Comparative Law And The Internationalisation Of Law In Europe / Mireille Delmas-marty -- Public Law In Europe : Caught Between The National And Sub-national And The European? / John Bell -- New Challenges In Public And Private International Legal Theory : Can Comparative Scholarship Help? / Horatia Muir Watt -- Abridged Or Forbidden Speech : How Can Speech Be Regulated Through Speech? / François Rigaux -- Legisprudence Of Comparative Law / Luc J. Wintgens -- Rawls' Political Conception Of Rights And Liberties : An Illiberal But Pragmatic Approach To The Problems Of Harmonisation And Globalisation / Paul De Hert And Serge Gutwirth -- Family Trees For Legal Systems : Towards A Contemporary Approach / Esin Örücü -- A Common Legal Language In Europe? / Anne Lise Kjœr. Edited By Mark Van Hoecke. Mainly The Plenary Papers Of The Conference On Epistemology And Methodology Of Comparative Law Held In Brussels, 24-26 October 2002, And Organized By The Katholieke Universiteit Brussel In Collaboration With The Vrije Universiteit Brussel And The European Academy Of Legal Theory. Includes Bibliographical References. Preliminaries......Page 1 Contents......Page 7 List of Contributors......Page 9 1 Legal Culture v Legal Tradition......Page 11 2 Legal Cultures and Legal Traditions......Page 17 3 Legal Epistemology and Transformation of Legal Cultures......Page 31 4 Epistemology and Comparative Law Contributions from the Sciences and Social Sciences......Page 45 5 How to Make Comparable Things Legal Engineering at the Service of Comparative Law......Page 89 6 Methodology and European Law Can Methodology Change so as to Cope with the Multiplicity of Law......Page 101 7 Comparative Law of Obligations Methodology and Epistemology......Page 133 8 Codifying European Private Law......Page 147 9 Deep Level Comparative Law......Page 175 10 NICE Dreams and Realities of European Private Law......Page 207 11 The Europeanisation of National Legal Systems Some Consequences for Legal Thinking in the Civil Law Countries......Page 239 12 Comparative Law and the Internationalisation of Law in Europe......Page 257 13 Public Law in Europe Caught between the National the Sub National and the European......Page 269 14 New Challenges in Public and Private International Legal Theory Can Comparative Scholarship Help......Page 281 15 Abridged or Forbidden Speech How Can Speech be Regulated through Speech......Page 295 16 Legisprudence and Comparative Law......Page 309 17 Rawls Political Conception of Rights and Liberties An Illiberal but Pragmatic Approach to the Problems of Harmonisation and Globalisation......Page 327 18 Family Trees for Legal Systems Towards a Contemporary Approach......Page 369 19 A Common Legal Language in Europe......Page 387 Annotation Whereas many modern works on comparative law focus on various aspects of legal doctrine the aim of this book is of a more theoretical kind - to reflect on comparative law as a scholarly discipline, in particular at its epistemology and methodology. Thus, among its contents the reader will find: a lively discussion of the kind of 'knowledge' that is, or could be, derived from comparative law; an analysis of 'legal families' which asks whether we need to distinguish different 'legal families' according to areas of law; essays which ask what is the appropriate level for research to be conducted - the technical 'surface level', a 'deep level' of ideology and legal practice, or an 'intermediate level' of other elements of legal culture, such as the socio-economic and historical background of law. One part of the book is devoted to questioning the identification and demarcation of a 'legal system' (and the clash between 'legal monism' and 'legal pluralism') and the definition of the European legal orders, sub-State legal orders, and what is left of traditional sovereign State legal systems; while a final part explores the desirability and possibility of developing a basic common legal language, with common legal principles and legal concepts and/or a legal meta-language, which would be developed and used within emerging European legal doctrine.All the papers in this collection share the common goal of seeking answers to fundamental, scientific problems of comparative research that are too often neglected in comparative scholarship Whereas many modern works on comparative law focus on various aspects of legal doctrine the aim of this book is of a more theoretical kind - to reflect on comparative law as a scholarly discipline, in particular at its epistemology and methodology. Thus, among its contents the reader will find: a lively discussion of the kind of 'knowledge' that is, or could be, derived from comparative law; an analysis of 'legal families' which asks whether we need to distinguish different 'legal families' according to areas of law; essays which ask what is the appropriate level for research to be conducted - the technical 'surface level', a 'deep level' of ideology and legal practice, or an 'intermediate level' of other elements of legal culture, such as the socio-economic and historical background of law. One part of the book is devoted to questioning the identification and demarcation of a 'legal system' (and the clash between 'legal monism' and 'legal pluralism') and the definition of the European legal orders, sub-State legal orders, and what is left of traditional sovereign State legal systems; while a final part explores the desirability and possibility of developing a basic common legal language, with common legal principles and legal concepts and/or a legal meta-language, which would be developed and used within emerging European legal doctrine. All the papers in this collection share the common goal of seeking answers to fundamental, scientific problems of comparative research that are too often neglected in comparative scholarship. Whereas many modern works on comparative law focus on various aspects of legal doctrine, the aim of this book is more theoretical - to reflect on comparative law as a scholarly discipline, and in particular its epistemology and methodology. It seeks answers to fundamental, scientific problems of comparative research